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The Diminishing Right to Privacy: How Orwellian Surveillance and Current Litigation Threaten One of Americans’ Most Fundamental Rights

Michael Brown*

Abstract

On June 1, 2013 an employee of defense contractor Booz Allen Hamilton at the United States National Security Agency (NSA) waited in a Hong Kong hotel to conduct a secret meeting with journalists from the England-based Guardian Newspaper. Reminiscent of a scene out of a poorly scripted spy movie, the employee, Edward Snowden, identified himself to the journalists with a Rubik’s cube outside of a restaurant. Five days later, the Guardian published an exposé that revealed to the world one of the most precarious government secrets in recent United States history: the PRISM program.
The NSA currently employs the PRISM program, a state-of-the-art eavesdropping system, by using the central servers of nine major U.S.-based corporations to monitor everything from the latest communications on Facebook to the most recent video chats on Skype. Christened the "Planning Tool for Resource Integration, Synchronization, and Management” or “PRISM,” this highly clandestine surveillance program monitors foreign intelligence that passes through domestic servers. Concerns regarding the privacy of domestic information examined by PRISM should be unwarranted, as pursuant to Section 702 of the Foreign Intelligence Surveillance Act (FISA), NSA administrators have restricted PRISM to preclude “intentionally target[ing] any U.S. citizen.” However, this “intentionally” constraint demands a meager 51 percent confidence in the foreignness of a potential target. Inevitably, this less-than-rigorous protocol has resulted in an unknown and potentially massive number of instances of surveillance targeting United States citizens.